California Civil Jury Instructions (CACI)
2901. Negligence - Duty of Railroad
A railroad must use reasonable care under the circumstances to provide its employees with a reasonably safe place to work and with reasonably safe and suitable tools, machinery, and appliances. The reasonableness of care depends on the danger associated with the workplace or the equipment. The failure to use reasonable care is negligence. A railroad is not negligent if, using reasonable care, it could not reasonably have foreseen that the particular condition could cause injury.
[Name of defendant] is responsible for the negligence of any of its officers, agents, or employees.
Directions for Use
For a definition of the term "negligence," see CACI No. 401, Basic Standard of Care.
Sources and Authority
"The plaintiff must make out a prima facie case of negligence on the part of the employer, including the element of reasonable foreseeability. . . . 'To recover, the plaintiff must prove that the railroad, with the exercise of due care, could have reasonably foreseen that a particular condition could cause injury. The defendant's duty is measured by what a reasonably prudent person should or could have reasonably anticipated as occurring under like circumstances.' " (Albert v. Southern Pacific Transportation Co. (1994) 30 Cal.App.4th 529, 534 [35 Cal.Rptr.2d 777], internal citations omitted.)
"Absent foreseeability, negligence is not established under FELA and without a showing of negligence, recovery is not permitted." (Albert, supra, 30 Cal.App.4th at p. 536, internal citation omitted.) But note that foreseeability is not required for claims arising from the Federal Safety Appliance Act (49 U.S.C § 20301 et seq.), or the Boiler Inspection Act (49 U.S.C § 20701).
"Although a railroad's duty to use reasonable care in furnishing employees a safe place to work is not stated explicitly in the statute, it has become an integral part of the FELA. Under the FELA, that duty ecomes 'more imperative' as the risk to an employee increases. The duty is a 'continuing one' and requires a jury to weigh a myriad of factors—including the nature of a task, its hazards and efforts—in determining whether an employer furnished an employee with a reasonably safe place to work. This continuous duty to provide a safe place to work is broader than the general duty to use reasonable care. Other courts in FELA actions have held that failure to instruct a jury regarding an employer's duty to provide a reasonably safe place to work is reversible error. We agree that when the issue is properly raised and an instruction is requested, the FELA requires jury instructions on the duty to provide a reasonably safe place to work." (Ragsdell v. Southern Pacific Transportation Co. (9th Cir. 1982) 688 F.2d 1281, 1283, internal citations omitted.)
"The test of negligence in supplying the employee a safe place to work is 'whether reasonable men, examining the circumstances and the likelihood of injury, would have taken those steps necessary to remove the danger.' " (Mortensen v. Southern Pacific Co. (1966) 245 Cal.App.2d 241, 244 [53 Cal.Rptr. 851], internal citations omitted.)
The duty to use reasonable care "is a duty which becomes 'more imperative' as the risk increases. 'Reasonable care becomes then a demand of higher supremacy, and yet, in all cases it is a question of the reasonableness of the care—reasonableness depending upon the danger attending the place or the machinery.' " (Bailey v. Central Vermont Ry., Inc. (1943) 319 U.S. 350, 353 [63 S.Ct. 1062, 87 L.Ed. 1444], internal citation omitted.)
"The employer is not the insurer of the safety of its employees and the test of the employer's liability to an injured employee is whether ordinary care was used by the employer in regard to the risk." (Baez v. Southern Pacific Co. (1962) 210 Cal.App.2d 714, 717 [26 Cal.Rptr. 899], internal citation omitted.)
The U.S. Supreme Court has held that an independent contractor is an "agent" for purposes of establishing an employer's liability under the FELA if the contractor performs "operational activities" of the employer. (Sinkler v. Missouri Pacific Railroad Co. (1958) 356 U.S. 326, 331-332 [78 S.Ct. 758, 2 L.Ed.2d 799].)
(New September 2003)